Opinion 95 - 23

This
opinion represents the views of the Office of the State
Comptroller at the time it was rendered. The opinion may no
longer represent those views if, among other things, there have
been subsequent court cases or statutory amendments that bear on
the issues discussed in the opinion.

CLAIMS -- Audit (officer's statement based on review of documentation)

TOWN BOARD -- Powers and Duties (permitting statement supporting voucher to be based on
review of documentation)

TOWN COMPTROLLER -- Powers and Duties (permitting statement supporting voucher to be
based on review of documentation)

TOWN LAW, §118(1): The town board, or the town comptroller if claims are audited by the
town comptroller, may, in determining the form of vouchers to be presented for audit, permit the
statement by the town officer whose action gave rise or origin to a claim to be based on that
officer's review of documentation relating to the claim.

This is in response to your inquiry concerning the form of vouchers presented to the town
board for audit under section 118 of the Town Law. Specifically, you ask whether the statement
by the town officer whose action gave rise or origin to the claim may be based on that officer's
review of documentation presented in support of the claim.

Town Law, §118(1) provides that, with certain exceptions not applicable here, no claim
against a town may be paid unless an itemized voucher in the form prescribed by the town board,
or by the town comptroller if claims are to be audited by the town comptroller, is presented to the
board or the comptroller and is audited and allowed. Section 118(1) further provides that the
voucher "shall be accompanied by a statement by the officer whose action gave rise or origin to
the claim that he approves the claim and that the service was actually rendered or supplies or
equipment actually delivered." Finally, section 118(1) authorizes the town board to determine,
by resolution, that vouchers be certified or verified by the person presenting the claim.

The primary purpose of the voucher required by section 118(1) is to give the town board
or the town comptroller the information necessary to audit a claim as required by section 119 of
the Town Law (34 Opns St Comp, 1978, p 168; 1971 Opns St Comp No. 71-659, unreported).
The town board's or the town comptroller 's audit, which may include the taking of evidence and
the examination of witnesses relating to the "justness and accuracy" of the claim, is intended to
ascertain whether the claim is a proper town charge (Town Law, §119[1], [2]; see People v
Barnes, 114 NY 317; see also 1971 Opns St Comp No. 71-659, unreported; 26 Opns St Comp,
1970, p 209).

Section 118(1) does not prescribe the particular details of the statement to be made by the
officer whose action gave rise or origin to the claim. This Office has expressed the opinion that,
as a general rule, the town officer making the statement required by section 118(1) must have
actual knowledge that the services have been rendered or the supplies or equipment delivered
(1977 Opns St Comp No. 77-836, unreported; 31 Opns St Comp, 1975, p 183; 31 Opns St Comp,
1975, p 28). We have, however, also acknowledged that there may be circumstances in which
the officer whose action gave rise or origin to the claim is not available or is not the person with
actual knowledge that the supplies or equipment have been received or the services rendered
(Opn No. 77-836, supra; 31 Opns St Comp, 1975, p 183, supra; Opn No. 71-659, supra). These
opinions may have been based, in part, on the recognition of the fact that section 118(1) does not
expressly require that the officer whose action gave rise or origin to the claim be the person to
whom services were rendered or the person to whom the supplies or equipment were delivered.

Here, it is proposed that the town officer's statement that he or she approves the claim and
that the services were actually rendered or the supplies or equipment were actually delivered be
based, in the normal course of business, on that officer's review of documentation presented in
support of the claim. In light of the provisions of section 118, discussed above, it is our opinion
that the officer's statement that a service was actually rendered or that supplies or equipment
were actually delivered does not necessarily have to be based on that officer's presence at the
time the service was rendered or the supplies or equipment delivered. Consequently, we believe
that the town board or the town comptroller, in prescribing the form of itemized voucher, may
determine that it is permissible for the town officer's statement to be based on his or her review
of documentary evidence relating to the claim. Such documentary evidence must still be
sufficient for the officer to satisfy himself or herself that the claim is proper and that the services
were actually rendered or the supplies or equipment actually delivered to the town. To this end,
the town board or the town comptroller may wish to establish internal controls and procedures
identifying the type of documentary evidence that is appropriate for a town officer to rely on in
making the statement required by section 118(1) (cf. CPLR, §3021 which requires a verification
made by a nonparty to set forth the grounds for the verifier's belief of anything in the pleading not
based upon knowledge).

If necessary, in the course of auditing a particular claim, the town board or the town
comptroller may still question the officer making the statement required by section 118, or
request the submission of the documentation upon which the officer's statement was based (see
Town Law, §119[1]; see also 1994 Opns St Comp No. 94-4, p 6). In addition, as discussed
above, the town board may require that the claimant certify or verify vouchers presented for
payment (Town Law, §118[1]). Such a certification or verification would provide a statement by
the claimant that the service was actually rendered or the supplies or equipment actually
delivered and that no part of the claim has been paid or satisfied (1979 Opns St Comp No.
79-202, p 36).

It should be noted, however, that we do not believe that it would be appropriate for the
town officer to rely solely on documentation provided by the claimant in making his or her
statement. Such reliance would defeat the dual statutory requirement that the claimant submit a
voucher and the town officer make a statement as to the propriety of the claim and increase the
potential for abuse (see 1979 Opns St Comp No. 79-726, unreported).

Consequently, it is our opinion that the town board or the town comptroller may, in
determining the form of vouchers to be presented for audit, provide that the statement by the
town officer whose action gave rise or origin to the claim be based on that officer's review of
documentation relating to the claim.

August 9, 1995
Salvatore D. Ferlazzo, Esq., Town Attorney
Town of Schodack